Smoking and mental health - NCSCT

Ethical and legal aspects 9
pose conflicting ethical demands on the clinical staff involved, 2 can lead to the
perpetuation of smoking in mental health settings.
9.2 Legal precedents
Several cases, finished or in progress, provide insight into the legality of
extending smoke-free policies to mental health treatment settings. The case of
R(N) v Secretary of State for Health; R(E) v Nottinghamshire Healthcare NHS
Trust [2009] (for academic commentary see Coggon 3 ) involved patients at
Rampton Hospital, one of England’s three high-secure forensic hospitals, who
challenged the extension of the Health Act ban on smoking in public places to
secure mental hospitals, which followed the expiry of the temporary exemption
for these institutions under the Smoke-Free (Exemption and Vehicles)
Regulations 2007 in England. (The Smoke-free Premises etc (Wales) Regulations
2007 do create an exemption for mental health premises without an expiry date.
The equivalent Scottish Regulations under the Smoking, Health and Social Care
(Scotland) Act 2005 also created an exemption, but a consultation was opened in
2009 on removing this.) This temporary exemption expired on 1 July 2008. The
applicants argued that, as their stay in Rampton was involuntary and long term,
they should be able to consider it as their home, and that extending the ban on
smoking in public places to secure hospitals violated their right to a private and
family life (article 8 of the European Convention on Human Rights 1950, as
enshrined in the Human Rights Act 1998).
The Court of Appeal found that article 8 does not protect a right to smoke in
secure mental hospitals. The reasoning of the court rested on a number of
arguments, but the central premises were that, although Rampton is home like in
some respects, it is nevertheless an environment with extensive restrictions on
liberty, that promotion of health of both the applicants and the other residents
and staff was a legitimate aim of the institution as a hospital, and that
deprivation of the opportunity to smoke was neither sufficiently important as a
limitation on private life nor onerous in terms of the discomfort involved as to
override the legitimate aims of public health and the protection of the health of
staff and inmates enshrined in the 2006 Act.
The N case divided the Court of Appeal, and the applicants lost on a majority
decision. In the later Scottish case of CL (CL v State Hospital 2011), the judge was
critical of the judgment in N. The CL case concerned regulations by the state
hospital controlling the food parcels that visitors to residents of the hospitals
could bring in, and a pricing policy in the hospital shop designed to encourage
low-fat and low-calorie diets. CL partially succeeded in overturning these
regulations, essentially on the ground that proper consultation had not been
carried out. Although smoking is mentioned only in passing, the judgment does
stress that, even in a secure hospital, the presumption needs to be that the patient
has all the usual liberties with specific restrictions prescribed by law and given
© Royal College of Physicians 2013 183